CHAPTER 4 —

SEXUAL HARASSMENT IN THE WORKPLACE

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§ 4.1

I. RECENT TRENDS & DEVELOPMENTS

§ 4.1.1

A. INTRODUCTION

In the years since the U.S. Supreme Court issued two landmark sexual harassment decisions – Burlington Industries, Inc. v. Ellerth,¹ and Faragher v. City of Boca Raton,²– both federal and state courts have followed the principles enumerated in those cases, and applied them to all types of harassment. The Ellerth and Faragher decisions impose liability on employers where supervisors engage in harassment that results in a "tangible employment action" – i.e., a demotion, termination, denial of benefits, and the like. Where supervisory behavior constitutes a hostile work environment, but does not result in a tangible employment action, employers have an affirmative defense to liability if they have exercised reasonable care in attempting to prevent, and promptly correct, workplace harassment, and the employee unreasonably failed to take advantage of such opportunities. (See "Liability for Conduct by Managers and Supervisors" section below.)

Unquestionably, employer liability for sexually harassing acts by supervisors has been expanded. However, even more importantly, an employer's actions in generating, disseminating and enforcing an appropriate antiharassment policy and procedure have been identified by the Supreme Court as critical elements of an employer's affirmative defense to claims of harassment. This chapter will explore harassment in the workplace and discuss the legal standards for determining harassment and defenses to such claims. This chapter also details preventative measures employers may take to prevent harassment from occurring and suggests a sample harassment policy. In addition, this chapter contains checklists and other practical tools that employers can utilize for creating a workplace free of harassment.

While sexual harassment still remains an issue of great concern, and there are numerous decisions issued every month on this topic, employers also need to understand and take measures to prevent other types of unlawful harassment, such as harassment based on an employee's disability, age, religion, national origin, race or color. There have been several recent cases that further explore how the courts have continued to refine the standards for sexual harassment and applied the same standards to cases involving harassment based on these other protected categories.

Over 13,000 charges alleging sexual harassment in violation of Title VII are filed each year with the EEOC and state and local Fair Employment Practices agencies. In 2003, reasonable cause was found in nearly 8% of those charges. That year the EEOC obtained $50 million in monetary benefits in relation to these sexual harassment charges, the fifth consecutive year this figure exceeded $50 million.³ And this statistic excludes the many millions of dollars that the EEOC and private plaintiffs obtained through litigation. For example, in May 2004, a Saratoga woman was awarded $15 million in a sexual harassment suit against a New York catering company.

With such jarring statistics, employers now, more than ever, must continue to take preventive measures in providing a workplace free from harassment and to take appropriate corrective action when harassment does occur. In addition to these statistics, the following cases, sampling the most noteworthy cases of the last year, demonstrate the broad scope of the potential liabilities for employers in the harassment arena.

§ 4.1.2

B. SEXUAL HARASSMENT UPDATE

Affirmative Defense: Failure to Take Advantage of Harassment Policy

An employee's unreasonable delay in taking advantage of an employer's sexual harassment policy can support an affirmative defense to a harassment lawsuit if the employer can show that it maintained an effective policy for reporting and responding to complaints of sexual harassment, and it exercised reasonable care in attempting to prevent and promptly correct the harassment. However, if the employee suffered a sufficiently adverse employment action, such as termination or demotion, then the employer can be held strictly liable.

In Pennsylvania State Police v. Suders,⁴ an employee quit due to an overwhelming barrage of sexual harassment from her supervisors. The employee alleged that her supervisors would continually discuss vulgar and sexually explicit topics in her presence along with making repeatedly crude gestures and insulting her work performance. The employee had argued that her constructive discharge should deny the employer any right to present an affirmative defense. However, the Supreme Court held that the employer was entitled to the opportunity to show that the employee failed to take advantage of her employer's sexual harassment policy and to give the employer the chance to remedy any harassment.

Similarly, in Walton v. Johnson & Johnson Services, Inc.,⁵ the Supreme Court let stand an Eleventh Circuit decision that an employee who was allegedly raped by a supervisor and suffers a continuing disability from the incidents is not sufficient to justify denying the employer the right to an affirmative defense. The employee argued that the employer's complaint procedure would not have helped her because prior to the assault she did not experience any actionable harassment. However, the Eleventh Circuit found that the employer had an antiharassment policy that sufficiently informed employees how to report harassment, and the employee's delay in doing so was unreasonable. The employee did not raise the argument that her severe emotional distress resulting from the rape constituted an adverse employment action until appellate briefing; therefore, the Eleventh Circuit and U.S. Supreme Court did not address this issue.

In Petrosino v. Bell Atlantic,⁶ the Second Circuit held that an employer's motion for summary judgment had to be denied where factual issues remained regarding the extent to which the plaintiff took advantage of her employer's antiharassment policies. The plaintiff alleged that her working environment was permeated with profanity, crude remarks and sexually explicit graffiti that demeaned women in general and, in some instances, was directed solely at the plaintiff. In response, the plaintiff repeatedly told supervisors and coworkers about the offending behavior, filed a grievance with her labor union, and called the company's ethics hotline. However, the employer presented evidence that the plaintiff failed to follow through with her complaints and refused to return several calls made by the company to investigate her claims. Because plaintiff's factual allegations must be deemed true in a motion for summary judgment, the employer's motion was denied.

Affirmative Defense: Employer Responds Promptly & Effectively

In Woodford v. Federal Express Corp.,⁷ the district court ruled that an employer was not required to terminate a harasser's employment in response to complaints of sexual harassment. In this case, the employee complained to various managers about a coworker's offensive computer messages and sexually explicit comments to her. She filed a formal complaint after going on medical leave to deal with an emotional breakdown suffered because of the harassing behavior she endured at work. In its subsequent investigation, the employer suspended the harasser for two days without pay, issued a warning letter, and required him to attend diversity training. In addition, when the injured employee returned from leave, she was given an office job where she would have little or no contact with her harasser. However, after running into the harasser on two isolated occasions, the employee quit and sued for constructive discharge. Because the company took appropriate action and timely investigated each and every complaint, the court found its actions reasonable and dismissed the injured employee's action.

In a similar case, an employer was entitled to summary judgment where it fired an employee who was harassing his coworker despite the fact that the alleged harasser subsequently threatened to beat up the coworker in the store parking lot.⁸ The plaintiff, a female employee, began complaining about a male coworker's sexually charged comments after she was hired. The company began an immediate investigation which resulted in the employer banning the harassing employee from store property during the investigation and eventually terminating his employment. The plaintiff was later confronted by the alleged harasser and his girlfriend in the store parking lot, and they threatened her with physical violence. When the plaintiff later quit, she sued claiming sexual harassment, intentional infliction of emotional distress, and battery. The court found that the company took immediate and appropriate corrective action with respect to the harassment and had no responsibility for the parking lot incident.

What Constitutes a Hostile Work Environment?

To establish a sexual harassment claim based on hostile work environment, an employee must prove that the conduct created an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Relevant factors for determining the existence of a hostile work environment include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance. For years, courts have been faced with the difficult question of whether specific alleged conduct rises to the level of a hostile work environment. The resulting case law makes one thing clear: the determination of hostile work environment must be made on a case-by-case basis.

In Valenti v. City of Chicago,⁹ the court denied summary judgment to the defendant police department where a former female officer plainly presented a valid case of sexual harassment based on a hostile work environment. The plaintiff was harassed by a supervising sergeant who made repeatedly crude sexual remarks to and about women. The plaintiff complained to several coworkers, but she never complained to anyone in upper management because she feared her harasser's retaliation. When the harasser transferred plaintiff from her position which included a regular weekday schedule to watch duty which did not, plaintiff did not return to work and instead took a medical leave due to stress. Plaintiff presented evidence that her harasser also transferred three other female officers during his tenure and that he berated and belittled these women as well.

In contrast, where sexual advances are more comparable to teasing, a sexually hostile work environment does not exist. In Singleton v. Department of Correctional Education,¹⁰ the plaintiff alleged that almost immediately after beginning her employment with the defendant, she was harassed by the prison's assistant warden. She claimed that he made references to spanking her, stared at her breasts and measured the length of her skirt telling her how good she looked in it. In addition, the assistant warden placed a video camera in plaintiff's office and improperly requested access to her leave records. Plaintiff complained to two superiors. The internal affairs department conducted an investigation and found that there was harassment, the harassment was common knowledge, and plaintiff's immediate supervisor interfered with the investigation. However, after plaintiff filed suit for sexual harassment , the court found that the conduct complained of was offensive, but because she was not propositioned, touched, subjected to sexual discussions, obscene materials or vulgar jokes, or threatened in any way, her claim could not survive summary judgment.

"Equal Opportunity" Harassment

Many employers have defended against claims of sexually hostile work environment by noting that the alleged harasser engaged in "equal opportunity" harassment – engaging in the same sexually offensive behavior in front of both men and women. Under such circumstances, employers have argued, the harassment is not "based on" gender and does not, therefore, satisfy the definition of hostile work environment. In Walker v. National Revenue Corp.,¹¹ for example, the court held that an employer did not violate Title VII when a gay male employee's female supervisor touched and sexually propositioned him. The court based its conclusion in part on evidence that the supervisor treated all employees, regardless of gender, in the same manner. Likewise, in Noto v. Regions Bank,¹² the Fifth Circuit held that a female employee was unable to establish the existence of a hostile work environment despite the fact that her female supervisor repeatedly hugged her and kissed her on the cheek. The Fifth Circuit explained that these actions must be placed in context, noting that the supervisor hugged and kissed the plaintiff's male and female coworkers. Thus, the conduct was not "based on" the plaintiff's gender.

In Gabriel v. Delaware River Port Authority,¹³ the District Court of New Jersey found that a female employee could not maintain a sexual harassment claim against her former employer for the vulgar and profane actions of her supervisor where he subjected both men and women to his offensive conduct. Such conduct included loud and obnoxious speech, profanity, unprofessional actions intended to make him appear powerful to subordinates, sexual and racial jokes, unsolicited criticisms of employees' work and abrasive encounters. To the extent that the supervisor addressed the plaintiff, his conduct and language was not specifically targeted at her sex.

Previous Consensual Affair No Bar to Sexual Harassment Claim

The Fifth Circuit Court of Appeals recently held that sexual harassment may occur after the plaintiff has a consensual sexual relationship with the harasser. In Green v. Administrators of Tulane Educational Fund, after the plaintiff decided to end a one-year casual affair with her supervisor, the supervisor disrupted the plaintiff's performance of her job duties, reassigned many of those duties to himself, cursed at her and humiliated her, ultimately prompting her to resign.¹⁴ After finding that the jury had sufficient evidence to conclude that the supervisor's conduct was severe and pervasive, the court rejected the defendant's argument that the alleged harassment was not based on sex but rather was based upon the supervisor's personal animosity arising out of the terminated relationship. The fact that the supervisor's conduct started only after the relationship ended and there was evidence that the supervisor wanted the relationship to continue was sufficient to establish that the plaintiff was exposed to disadvantageous terms or conditions of employment to which members of the opposite sex were not.

§ 4.1.3

C. SAME-SEX SEXUAL HARASSMENT

The courts have continued to struggle to reconcile the viability of same-sex sexual harassment suits, as authorized by the Supreme Court, with the fact that Title VII provides no cause of action for discrimination based on sexual orientation. One example is Daka, Inc. v. McCrae,¹⁵ where a banquet chef at Howard University sued his employer for the sexual harassment he suffered at the hands of his male supervisor. The supervisor told plaintiff he was hired for the way he looked in pants, that he should be careful yawning as he might find something in his mouth, and the supervisor frequently bragged about his own sexual activities. In addition, the supervisor slapped plaintiff for criticizing another employee. When he complained of this incident, plaintiff discovered that the employer already knew of the supervisor's sexually harassing behavior and chose to do nothing about it. The plaintiff was later demoted. The company's investigation resulted in the conclusion that the allegations were unsubstantiated. The jury found that the employer was negligent in failing to prevent the harassment and it retaliated against plaintiff by demoting him. The jury awarded plaintiff $4.8 million, but the court found such damages excessive and remanded the case for further award determination.

Similarly, in Cromer-Kendall v. District of Columbia,¹⁶ the court found that plaintiff could proceed on her claims of same-sex sexual harassment despite the fact that she did not suffer an adverse employment action. Plaintiff alleged that shortly after she began working as a police officer, her female supervisor began making unannounced visits to her home and on one occasion, exposed herself in plaintiff's kitchen asking plaintiff if she found her attractive. After plaintiff reported the incident, her supervisor cornered her and began inappropriately fondling her. The department transferred her to another assignment after the first complaint, but plaintiff still frequently saw the harassing supervisor. She then filed a formal complaint with her local human rights agency. The department refused to transfer plaintiff to another assignment so she requested sick leave until a transfer to another department could be effected. The court found these series of events to be sufficiently severe, pervasive and because of her sex to constitute a hostile working environment. In addition, plaintiff's frequent internal complaints to her superiors defeated the department's attempts to raise an affirmative defense.

§ 4.1.4

D. GENDER STEREOTYPING: RECENT CASES

In James v. Platte River Steel Co., Inc.,¹⁷7 an employee alleged that a male coworker jumped on his back, stuck his tongue in the his ears, grabbed his crotch and made other obscene and vulgar statements with sexual connotations to the employee. After the employee left the company, he sued alleging sexual harassment and constructive discharge. However, after the employee testified that he had "no idea" why his coworker was harassing him, the employer moved for summary judgment and won because the employee had failed to present any evidence to establish that he was harassed because he was a male or because he failed to conform to gender stereotypes. The Tenth Circuit affirmed the District Court's grant of summary judgment.

§ 4.1.5

E. RACE HARASSMENT: RECENT CASES

In Jackson v. Flint Ink N.A. Corp.,¹⁸ an African-American paste operator sued his employer after he was terminated for the third time. He claimed he was subjected to a hostile work environment where supervisors called him "that damn nigger," his coworkers made repeated racial slurs and where his work station contained two separate examples of "KKK sign" graffiti. The Eighth Circuit held that at most plaintiff was exposed to six incidents of racial slurs over a year and a half period and the KKK graffiti was not indicative of a death threat directed specifically at plaintiff. As such, the court concluded that summary judgment should be granted to the employer.

In contrast, in Johnson v. United Parcel Service Inc.,¹⁹ the Sixth Circuit found that racial slurs made by coworkers and supervisors in addition to discriminatory disciplinary actions created a hostile work environment. Two African-American drivers for the company testified that managers used the racial epthet "nigger," told racist jokes, and mocked African Americans by mimicking stereotypical speech. In addition, plaintiffs claimed that black drivers were disproportionately singled out for supervised rides, were not allowed to relax the uniform dress code as white employees were and were constantly under greater scrutiny than white employees. For example, a white employee struck a black employee in the face while uttering racial slurs, but received a very minimal punishment. The case was remanded for a new trial on plaintiffs' racial harassment claims.

§ 4.1.6

F. NATIONAL ORIGIN HARASSMENT: RECENT CASES

A Colorado based subcontracting firm has entered into a settlement agreement with Mexican workers who were subjected to ethnic slurs and harassment on the job.²⁰ The ten named plaintiffs were subjected to harassing comments such as "lazy, stupid, damn wetbacks" on a daily basis. In addition, workers were not permitted to use the clean restrooms on the ground floor of the building, nor were they allowed to use the facility's elevators although white workers were permitted to use both. The EEOC and the employer reached a settlement agreement of $750,000.

§ 4.1.7

G. RELIGIOUS HARASSMENT: RECENT CASES

In Bodett v. Coxcom, Inc.,²¹ a supervisor harassed a subordinate employee for being openly homosexual and stating that such behavior violated her Christian faith. The supervisor then prayed with employee, urged her to be "born again," attended church with her, and purchased a ticket for her to attend a "Women of Faith" concert. The employee later transferred telling her superiors at the company that her supervisor's constant harassment, including continued comments that homosexuality was a sin, was the reason she wanted to leave. The company had a strict antiharassment policy and, after a thorough investigation, fired the supervisor. Interestingly, the employee did not sue the company, but her supervisor did, claiming that her termination amounted to religious discrimination. The court dismissed all claims against the company and the Ninth Circuit affirmed.

§ 4.1.8

H. DISABILITY HARASSMENT: RECENT CASES

In Roberts v. Dimension Aviation,²² plaintiff was harassed by his coworkers for his lazy eye and high school learning disability. They repeatedly called him "stupid", "retarded", "one-eye", and "walleye." In addition, one coworker placed a hand-drawn picture of plaintiff with stars around his head indicated that he was confused and a bad dominoes player. The court found, however, that plaintiff failed to make out a prima facie case of disability harassment because he could not show that he was a member of a protected class, i.e. that he was in fact, or perceived to be, disabled.

§ 4.1.9

I. CONTINUING VIOLATION & TIMELINESS OF ADMINISTRATIVE CHARGES

In its 2002 decision in National Railroad Passenger Corp. v. Morgan, the United States Supreme Court considered whether the so-called "continuing violation" doctrine applied to claims of discrimination and harassment. As a general rule, Title VII requires that a plaintiff file a charge with the Equal Employment Opportunity Commission within 180 or 300 days (depending on the jurisdiction) after the alleged unlawful employment practice occurred. Asserting the continuing violation doctrine, however, plaintiffs have attempted to recover for incidents that occurred outside the statutory time limit by arguing that at least one instance of the alleged unlawful conduct occurred within the limitations period and that the earlier acts were part of a continuing pattern. The Supreme Court unanimously held that the continuing violation doctrine did not apply to discrete acts of discrimination or retaliation, such as termination, failure to promote, denial of transfer, and refusal to hire.²³

By a slim 5-4 majority, however, the Supreme Court held that the continuing violation doctrine could apply to claims of hostile environment. The Supreme Court majority reasoned that the "unlawful employment practice" of a hostile work environment does not necessarily arise on a single day, but can often be the result of the cumulative impact of individual acts that take place over many days (or even years). Since a hostile environment claim can be comprised of a series of separate acts that collectively constitute one unlawful employment practice, it does not matter that some of the component acts of the hostile environment claim fall outside the statutory time period. As long as one act contributing to the claim occurs within the filing period, therefore, the entire time period of the hostile environment may be considered, and the employer may be liable for all acts that form part of the claim.

Recently, lower courts have applied Morgan to revive a number of hostile environment claims that were based, in part, on conduct that occurred outside of the statutory time period. For example, a district court ruled that where plaintiff suffered from inappropriate sexual advances during her first two years of employment, but failed to report them, her sexual harassment claims were time-barred. The Ninth Circuit, however, in reviewing the case, found that the district court failed to appreciate that the retaliatory acts plaintiff suffered later in her employment were sufficiently related to the inappropriate conduct she suffered earlier. Therefore, because the latter acts were within the statutorily required time frame, the continuing violation theory protected plaintiff's earlier claims from summary judgment.²⁴

However, in Gibbs v. GMC²⁵ an opposite result was reached. The Seventh Circuit held that the continuing violation theory could not resurrect plaintiff's untimely claims where the plaintiff knew or should have known that the alleged acts rose to the level of sufficient severity to report them immediately. The Seventh Circuit stated, "[a]lthough the continuing-violation doctrine allows a claim to be premised on otherwise time-barred acts that can be linked with conduct falling within the limitations period, a plaintiff hoping to rely on the doctrine must demonstrate that she delayed suing because she reasonably failed to identify her working conditions as intolerable until the acts of harassment had, through repetition or cumulation, reached the requisite level of severity."

§ 4.2

II. OVERVIEW OF WORKPLACE HARASSMENT LAW

In 1964, Congress passed the Civil Rights Act and Title VII prohibiting discrimination on the basis of race, color, religion, national origin and gender. For more than a decade after its passage, Title VII was primarily used to address discrimination in the workplace. It was not until 1976 that courts first recognized that Title VII also prohibited sexual harassment in the workplace.²⁶ Since then, courts have struggled to establish uniform legal standards for determining what conduct constitutes workplace sexual harassment and under what circumstances employers should be held responsible for such conduct. Courts have also gradually recognized that Title VII not only prohibits sexual harassment but also prohibits other kinds of harassment based on an employee's race, color, religion and national origin. With the passage of the ADA and ADEA, harassment of disabled individuals as well as people over age 40 is also forbidden.

Continuing the evolution in the field of harassment law, there is a recent trend concerning sexual harassment complaints filed with the EEOC. Although Title VII's prohibition against sex discrimination and harassment was intended to provide protection for females, the law's actual language prohibits discrimination and harassment based on one's "sex." Thus, the prohibition applies to discrimination and harassment against both males and females. Males are now more frequently invoking this protection, as the percentage of sexual harassment charges being filed by males has increased 50% since 1993.

Thousands of harassment charges are filed with the EEOC and local fair employment practices agencies each year. The latest statistics show that the number of reasonable cause determinations is at its highest level in over ten years, and the amount of monetary benefits the EEOC is obtaining has increased threefold in recent years. These statistics provide further indication that the field of harassment law is thriving, and will continue to develop. Now, more than ever, employers need to take preventive measures to provide a workplace free of harassment and avoid the pitfalls and liabilities in this developing area of the law.

§ 4.2.1

A. TYPES OF HARASSMENT

The legal definition of "harassment" has been evolving for a number of years. As the initial cases under Title VII dealt exclusively with sexual harassment, the first definitions also were focused on this particular kind of conduct. In the past, two types of harassment were recognized: quid pro quo and "hostile work environment." Traditionally, quid pro quo harassment was found only in situations that involved harassment based on gender, while "hostile work environment" harassment applied to all kinds of unlawful harassment. The Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth²⁷ and Faragher v. City of Boca Raton²⁸ have changed the meaning of these traditional terms. Harassment may now be defined by the harm caused to the victim rather than the nature of the offensive conduct. The court identified two categories of harassment: those involving a "tangible employment action" and those involving a "hostile work environment."

§ 4.2.1(a)

Economic Harassment

"Economic harassment" normally involves some type of tangible employment action resulting in a monetary loss for an employee or significant changes in workload or work assignment. Economic harassment is different from quid pro quo harassment because economic harassment focuses on the harm to the victim rather than the conduct of the harasser. It requires that the threat of job detriment or promise of job benefit actually result in some sort of employment action, such as a termination, promotion, demotion or reassignment to a considerably different job. Employers are strictly liable for conduct by managers that constitutes economic harassment.

§ 4.2.1(b)

Environmental Harassment

Harassment that creates adverse working conditions but which does not result in a tangible employment action may be referred to as "environmental harassment." Environmental harassment can be based not only on gender but also on race, color, religion, national origin, age, disability or any other characteristic protected by law. Such harassment can involve jokes, graffiti, comments, stories, photographs, gestures, e-mail, or written materials that interfere with an employee's work performance. Environmental harassment will be found where the conduct in question is: (1) unwelcome; (2) related to a protected category; (3) offensive both to the recipient and to a reasonable person; and (4) severe or pervasive. In addition, threats of job detriment or promises of job benefits that do not result in tangible employment actions may amount to environmental harassment if the threats create an intimidating, hostile, or offensive work environment.²⁹ Generally, an employer will not be liable for environmental harassment engaged in by managers if the employer can show that it used reasonable care to prevent and correct the harassment and the employee failed to make a complaint or to otherwise avoid harm. Conversely, if the employer cannot show that it used such reasonable care to prevent or correct harassment, particularly when the employee has utilized the employer's complaint procedures, the employer can be found liable.

§ 4.2.1(c)

Types of Conduct that May Be Found to Be Harassment

Given the above definition of hostile environment harassment, there is a variety of conduct that could be considered unlawful harassment. Examples of behaviors which can create a hostile work environment include, but are not limited to:

• unwanted sexual advances;
• offering employment benefits in exchange for sexual favors;
• visual conduct such as leering, making gestures, or displaying derogatory pictures, cartoons, calendars, posters or drawings;
• verbal conduct such as derogatory comments, epithets, slurs, or jokes;
• written communications distributed in hard copy or via computer network, which are derogatory or stereotypical based upon gender, race, national origin, etc.;
• verbal abuse, graphic verbal comments, use of degrading words to describe an individual, suggestive or obscene letters, notes or invitations;
• physical conduct such as touching, assault, impeding or blocking movements; or
• retaliation for making harassment reports or threatening to report harassment.

While the above list is not all-inclusive, it does provide a good overview of the type of conduct which employers should be vigilant in responding to and preventing.

§ 4.2.2

B. SAME-SEX SEXUAL HARASSMENT

For years, federal courts were divided on the issue of whether an employee harassed by a coworker or supervisor of the same sex could sue for sexual harassment under Title VII. Resolving this division, in 1998 the Supreme Court ruled for the first time that Title VII's broad mandate against discrimination applied to same-sex sexual harassment claims, regardless of the sex or sexual orientation of the persons involved. In Oncale v. Sundowner Offshore Services, Inc., a male oil-rig worker complained that his coworkers harassed him by subjecting him to sex-related, humiliating acts, including physically assaulting him in a sexual manner.³⁰ In its decision, the court stressed that the offending conduct must occur because of the worker's sex, but that it need not be motivated by sexual desire. The court also distinguished "ordinary socializing" in the workplace, such as "male-on-male horseplay or intersexual flirtation" from conduct that a reasonable person would find severely hostile or abusive.

Following Oncale, a federal district court in Minnesota allowed a case to proceed to trial where a male employee in a meat packing plant alleged sexual harassment by male coworkers. He claimed his coworkers held him down in a bin of raw meat; simulated oral and anal sex acts; grabbed his genitals; and rubbed a steel rod between his legs. He also alleged that his coworkers called him "Fargo Fag" and made specific references to homosexual sex acts. When he complained to a supervisor, he was told that the coworkers' behavior was "just in good fun." Although the employer argued that the case should be dismissed because the employee could not show the treatment was because of his gender, the court disagreed. A jury could conclude from the sexually explicit assaults and the frequent references to homosexual sex acts, that gender was a motivating factor of the offensive behavior.³¹

§ 4.2.2(a)

Sexual Orientation Harassment Not Covered by Title VII

Harassment based on an employee's sexual orientation, however, is not equivalent to same sex sexual harassment. The Seventh Circuit Court of Appeals refused to extend Title VII protection for sexual orientation harassment in Spearman v. Ford Motor Co.³² A homosexual male machine operator alleged that his male coworkers and male supervisor made sexually explicit, vulgar insults towards him, referring to him as a "faggot" and "selfish bitch" and commenting that they wanted his "gay ass." In addition, graffiti on the company bulletin board stated: "AIDS kills faggots dead . . . RuPaul, RuSpearman." The Seventh Circuit Court of Appeals dismissed his lawsuit, finding that the machinist was harassed because of his apparent homosexuality, not because of his gender, male.

Similarly, a federal district court in Texas dismissed a male press operator's claim that he was subjected to a hostile work environment because fellow employees mistakenly believed he was homosexual. He claimed his coworkers teased him about having an affair with a male coworker, although he admitted the coworker displayed no sexual interest in him. The court ruled that the operator's perceived sexual orientation was not protected by Title VII and that he had failed to produce evidence that he was harassed because of his gender.³³

An important caveat to this line of cases is the fact that an employee whose sexual orientation harassment claim would be disallowed by Title VII may nonetheless have a viable sexual harassment claim. Generally, this can occur under two theories. First, the homosexual employee may be able to establish that his or her harassers were motivated in whole or in part by a belief that the employee was not conforming to stereotypical gender roles.³⁴ Second, if the conduct at issue involves the offensive touching of body parts associated with sexuality, it may be enough to establish that the conduct is based on sex.³⁵

For example, the Ninth Circuit, in Rene v. MGM Grand Hotel, Inc., held that an openly gay butler at the MGM Grand Hotel in Las Vegas stated a claim for sexual harassment on the basis of his gender under Title VII.³⁶ The plaintiff presented evidence that his supervisors and coworkers, all male, subjected him to a hostile work environment on an almost daily basis. Among other things, the harassers whistled and blew kisses at the plaintiff, called him "sweetheart," told him crude jokes, jokingly gave him sexually explicit gifts, and forced him to look at pictures depicting men having sex. Additionally, the harassers repeatedly touched him in an offensive manner, including grabbing his genitals, caressing and hugging him and poking at his anus through his clothing. The plaintiff claimed that this behavior occurred because he was homosexual. The lower court dismissed the plaintiff's case, reasoning that the plaintiff's claim, rather than one for gender discrimination, was for discrimination based upon sexual orientation, a classification that is not protected under Title VII. A majority of the Ninth Circuit, sitting en banc, overturned the decision, reasoning in part that the harassers' physical sexual assault of the plaintiff was inescapably based upon the plaintiff's gender. Because the coworkers' attacks were targeted at areas of the plaintiff's body associated with sexuality, it made no difference to the majority that the attacks may also have been motivated by the plaintiff's sexual orientation. Further, the plaintiff's claim was not defeated by the fact that he could not show discriminatory treatment in comparison to females. It was enough that he produced evidence that could establish that he received worse treatment than other men in his all-male work environment. One of the judges in the majority agreed with the result, but reasoned instead that the plaintiff had shown that he was discriminated against because of his failure to conform to male stereotypes.

In La Day v. Catalyst Technology, Inc., the Fifth Circuit held that a male employee could continue to trial on his claim that his male supervisor sexually harassed him by making sexual advances and touching him inappropriately.³⁷ The court noted that, under the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., one way for a plaintiff to establish that an incident of same-sex harassment constitutes sex discrimination is by showing that the alleged harasser made "explicit or implicit proposals of sexual activity" and by providing "credible evidence that the harasser was homosexual."³⁸ In finding that the employee presented sufficient evidence for a jury to find that his supervisor was homosexual, the court cited two categories of "especially credible" proof of the issue: first, that the harasser intended to have some kind of sexual contact with the plaintiff and second, that the harasser made same-sex sexual advances toward others. In La Day, the plaintiff's supervisor had approached the plaintiff from behind and fondled his anus, after remarking that he was jealous of the plaintiff's girlfriend. Additionally, there was evidence that the supervisor had sexually propositioned two other male employees. Interestingly, under the Ninth Circuit's decision in Rene, discussed above, the plaintiff in La Day arguably could have proceeded to trial on a different basis: that the supervisor's targeting of a body part associated with the employee's sexuality supported a claim for harassment based on gender.

§ 4.2.3

C. RACIAL HARASSMENT

While sexual harassment has received much attention in the decades following the passage of the 1964 Civil Rights Act, racial harassment is an area in which increased litigation is occurring. The following are examples of cases involving allegations of racial harassment.

§ 4.2.3(a)

Faragher & Ellerth Standard Found to Apply to Racial Harassment

Courts have extended the application of the standard adopted by the Supreme Court in Ellerth and Faragher to racial harassment cases. Thus, in Hill v. American General Finance, Inc., an African–American lending/collection administrator claimed she was subjected to racial harassment nearly from the moment she began her job.³⁹ She claimed her supervisor made racial remarks, such as "Don't come into the office talking ‘black,' because this ain't no Aunt Jemima office." After several months, she wrote two anonymous letters to her employer complaining of her supervisor's actions and remarks. The employer immediately investigated and took corrective action; however, the employee later resigned and sued for racial harassment. The court analyzed the employee's claims under the Faragher and Ellerth standards. Because the employer had an antiharassment policy and acted promptly once it received the complaints, the employee's lawsuit was dismissed.⁴⁰

§ 4.2.3(b)

Hostile Environment Based on Race

Racial remarks uttered by coworkers, but made outside an employee's presence, will not result in a hostile work environment. In Mason v. Southern Illinois University at Carbondale, an African-American dispatcher complained about his supervisor's harsh treatment of him.⁴¹ The supervisor called him "dumb" or "stupid," but never made racial remarks to him. In support of his claim, he attempted to introduce evidence of racial epithets uttered by coworkers outside his presence. The court ruled that mean-spirited or derogatory remarks of which he was unaware, and thus never experienced, could not support his claim.

However, if derogatory comments are not directed at an employee but made in his or her presence, then such claims may be sufficient to establish that a racially hostile work environment existed. In Cruz v. Coach Stores, Inc., the court found that a Hispanic employee who alleged a human resources manager made racial remarks to her, could also rely on evidence that he made similar remarks to other employees in her presence, to establish the overall hostility of the working environment.⁴²

Meanwhile, not all racial comments are sufficient to create a hostile work environment. Rather, as with sexual harassment, the comments must be sufficiently severe or pervasive so as to render the working conditions hostile or sufficiently offensive. For instance, in Whitman v. Joseph T. Ryerson & Son, Co., the court found that conduct occurring over a five-year period was not severe or pervasive race-based conduct sufficient to support a claim for racial harassment.⁴³ In particular, the plaintiff had complained that racial epithets were directed at other African-Americans, that racist graffiti had been found in the workplace, that obscene gestures had been made to the plaintiff, and that a poem containing racist, sexist and homophobic messages was strewn about the plant.

In contrast, in Bowen v. Missouri Department of Social Services, the Eighth Circuit reversed summary judgment for the employer and reinstated the claim of a white employee that she had been harassed based on her race.⁴⁴ Over a two-year period, a black coworker had referred to the plaintiff as a "white bitch" and a "menopausal white bitch." These statements, along with evidence that the alleged harasser had threatened the plaintiff with a physical beating and attempted to intimidate her, were sufficient to support an allegation that the conduct was severe enough to alter the terms and conditions of the plaintiff's employment.

§ 4.2.3(c)

"Legitimate Nondiscriminatory Reason" Defense

Disciplinary actions taken for legitimate nondiscriminatory reasons may not support a claim for harassment. In Campbell v. Dominick's Finer Foods, Inc., the court dismissed a black grocery store clerk's racial harassment lawsuit.⁴⁵ The clerk claimed his employer harassed him by disciplining and terminating him, when non-blacks were not treated as harshly. The employer, however, demonstrated that the discipline was warranted by the clerk's record. He was repeatedly absent from work, disrespectful to his superiors, refused to take orders, used profanity when speaking to his supervisors and in front of customers, worked unauthorized overtime and made threats to the store management. Moreover, the clerk admitted to committing each of the above acts.

§ 4.2.4

D. NATIONAL ORIGIN HARASSMENT

A pattern of repeated verbal assaults based on an employee's ethnicity or nationality may be sufficient to establish a claim for harassment. In Miller v. Kenworth of Dothan, Inc., the Eleventh Circuit upheld a verdict in favor of a Mexican-American salesman who, during his four months of employment with the defendant, was subjected to a continuing stream of racial epithets, such as "Julio," "Chico," "Taco," "Wetback," "Spic," and "Mexican Mother F----."⁴⁶ The court reasoned that the frequency of these comments, as well as the fact that they were used to argue with and taunt the plaintiff, established the necessary severity for the jury to conclude that the conduct affected the terms and conditions of the plaintiff's employment.

However, sporadic incidents are not enough to establish national origin harassment. In Horsford v. The Salvation Army, a woman from Trinidad alleged national origin harassment.⁴⁷ She claimed that she was subjected to comments from supervisors and coworkers such as "these Trinidad women are something else," "island woman" and "West Indian woman." The court found that such comments, which had sporadically occurred over an 11-year period, were isolated remarks and were not sufficiently severe to create a hostile work environment.

An individual can state a claim for national origin harassment even when he is subjected to derogatory conduct aimed at the wrong nationality. In La Rocca v. Precision Motorcars, Inc., a car salesman of Italian ancestry worked at an automobile dealership.⁴⁸ His dark brown complexion drew comments from the car dealership's finance manager, who repeatedly hurled the offensive epithet "spic" at him — even after she was informed that her slur applied to those of Mexican descent, not Italians. The court allowed the salesman's claim to proceed, reasoning that his complexion (which was tied to his national origin) was what prompted the epithets from the manager.

In Kang v. U. Lim America, Inc., the Ninth Circuit reversed summary judgment and allowed a case to go to trial where Korean workers alleged that they had been harassed by their Korean employer.⁴⁹ The plaintiffs claimed that they were subjected to physical and verbal abuse that employers of other nationalities did not suffer, because their employer viewed Korean workers as superior and subject to a higher standard. The Ninth Circuit held that this abusive behavior could constitute national origin harassment.

§ 4.2.4(a)

Faragher & Ellerth Standard Found to Apply to National Origin Harassment

The same affirmative defenses applicable in other Title VII harassment cases, arising out of the Supreme Court's Faragher and Ellerth cases, apply to national origin harassment cases as well. In Simoudis v. Ford Motor Co., the court held that a Greek-American plant employee who alleged that his supervisors harassed him because of his national origin could not recover because the company had taken steps to prevent harassment in the workplace, and the plaintiff had failed to take advantage of the procedures in place for making complaints.⁵⁰

§ 4.2.5

E. RELIGIOUSHARASSMENT

Title VII also prohibits subjecting employees to religious harassment that results in a hostile work environment. For a religious discrimination claim to be actionable, the employee must show that the offensive conduct was motivated by an intent to discriminate on the basis of religion. The application of this standard is exemplified in the following recent religious harassment cases.

§ 4.2.5(a)

Intent Required in Religious Harassment Cases

The primary focus in religious harassment cases is whether there is an intent to discriminate on the basis of religion.

In Cook v. Cub Foods, a maintenance clerk sued the grocery store where he worked, alleging that the store manager maintained a working environment that was hostile to the clerk's religion.⁵¹ The clerk, who was Lutheran, complained that the manager twice played "Satanic death metal" over the loudspeakers and, from time to time, played the music in his office. He also claimed that the manager posted memos with depictions of disturbing characters, including one character that the clerk claimed had an "evil look in his eyes." The depictions were of characters from the popular fantasy role playing game, Dungeons & Dragons, and the grocery store claimed that the manager used the memos to motivate and congratulate employees. The federal court found in favor of the grocery store, noting that although the clerk may have found the heavy metal music and the characters on the memos to be offensive, there was no evidence that the manager had been acting with an intent to harass the clerk because of his religion. Consequently, the court dismissed the clerk's Title VII lawsuit.

A manicurist claimed that she was harassed by other employees because of her religious beliefs and moral convictions in Mullen v. Topper's Salon & Health Spa, Inc.⁵² The harassment consisted of sexual remarks made by coworkers that conflicted with her religious beliefs, that "sexual matters should be held personal and private and certain sexual acts are offensive." Despite the manicurist's complaints, she claimed that management took no action.

She was subsequently terminated after she refused to continue working as a manicurist. The federal court dismissed her complaint because she failed to inform her employer that the harassment she complained of had been religious in nature.

§ 4.2.5(b)

Employer Liability in Religious Harassment Cases

The court in Sultan v. American NTN Bearing Manufacturing Corp., confirmed that the affirmative defense available to employers in sexual harassment cases applies equally to Title VII religious harassment cases.⁵³ In Sultan, the plaintiff claimed that he had been harassed by his supervisor because of his Muslim religion. The court held that even if the alleged harassment had occurred, the employer was entitled to summary judgment, because the plaintiff had failed to complain about the harassment through established channels.

In Shanoff v. Illinois Department of Human Resources, a Jewish staff development and training coordinator at a medical center claimed his supervisor repeatedly subjected him to comments about his religion, such as stating she knew "how to put you Jews in your place," and calling him a "haughty Jew."⁵⁴ She also remarked that she knew how to "handle white Jewish males like you" and when he asked to take Yom Kippur off, denied his request stating, "I don't give a damn about your holidays." Furthermore, she refused to allow him to train medical students even though his job description provided for that role, threatened him for complaining, and said "good" when he told her his health was failing. The Seventh Circuit refused to dismiss his Title VII lawsuit, finding that he had presented evidence that the supervisor had used her position to bully, intimidate, and insult him.

§ 4.2.6

F. AGE HARASSMENT

The ADEA prohibits the creation of a hostile work environment based upon an employee's age. In order to successfully establish harassment under the ADEA, an employee must demonstrate that: (1) he or she is 40 years of age or older; (2) he or she was subjected to harassment, either through words or actions, based on age; (3) the harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile or offensive work environment; and (4) there exists some basis for liability on the part of the employer.⁵⁵

§ 4.2.6(a)

Hostile Environment Harassment Based on Age

A single comment regarding the plaintiff's age was not sufficient to establish a hostile work environment in Lacher v. Principi.⁵⁶ In that case, a supervisor had allegedly threatened to replace the plaintiff with a younger individual and told the plaintiff that he "had lost it" and "was over the hill." The court found that these comments were nothing more than incidental remarks that, while offensive, did not affect the terms or condition of the plaintiff's employment. Similarly, the same court failed to find a hostile work environment in Steele v. Atrium Co., where a coworker had made several comments that the plaintiff was old, along with other derogatory statements regarding his age, over a two-year period.⁵⁷

The Fifth Circuit Court of Appeals in Rivera-Rodriguez v. Frito Lay Snacks Caribbean, found that seven age-related comments made by high-ranking company officials within a three-year period were sufficient to support a human resource director's age harassment claim.⁵⁸8 The director, who was 49 when the comments began, was told by company officials that his health problems were due to "ansia" (old age), and that they preferred applicants with "youth and intelligence." They also commented his "gray hair must mean he's 60 years old," and during a staff meeting a company official told him, "be quiet, you're stale."

§ 4.2.6(b)

Harassment Not Based on a Protected Category

An interesting concept has developed in light of the statutory requirement that the harassment be "based on" a protected category. The idea of an "equal opportunity harasser" has developed from those uncommon situations where an employee harasses other coworkers without regard to their sex, race, national origin, etc., because the employee harasses everyone, regardless of their membership in a protected category. For example, where a supervisor had been sexually harassing a male and a female employee by soliciting sex from each on separate occasions and then had retaliated against each, the court found that neither employee had a Title VII claim for sexual harassment, as the supervisor had harassed both sexes, and was thus an ‘equal opportunity harasser.'⁵⁹ The sexual harassment was not "based on sex," as both sexes were harassed, eliminating the possibility of disparate treatment of one sex over the other.

Similarly, in Hardin v. S.C. Johnson & Son, Inc., an African-American female claimed her supervisor subjected her to racial and sexual harassment.⁶⁰ She claimed her supervisor cursed at her, cut her off in the parking lot, allowed a door to close in her face, and startled her. The court rejected the employee's claims, finding that while the supervisor was a "crude and boorish person," he mistreated everyone equally and did not single out women or blacks for poor treatment any more than men or whites. In addition, the court found that there was "nothing inherently sexual or racial" about the supervisor's abusive language and behavior.

Courts in other jurisdictions have not subscribed to the "equal opportunity harasser" theory. For example, the Ninth Circuit recognized that a harasser's jokes about other racial groups besides the group to which the plaintiff belonged did not excuse the racial harassment directed at the plaintiff.⁶¹

It is strongly advisable for employers to take immediate steps against any harassment, regardless whether a manager or coworker harasses employees of both sexes. The "equal opportunity harasser" is a defense not accepted by all courts, and may involve great risk if relied upon.

§ 4.2.7

G. DISABILITY HARASSMENT

Federal courts have begun to extend to the Americans with Disabilities Act the protections against workplace harassment developed under Title VII of the Civil Rights Act of 1964.⁶² These courts have held that the existence of such a cause of action is supported by the use of identical language in the ADA and Title VII, as well as the ADA's purpose and remedial framework.⁶³ In order to establish a claim of disability harassment, an individual must prove that he is a member of the class of people protected by the statute, was subjected to unwelcome harassment, that the harassment resulted from his membership in the protected class, and that the harassment was severe enough to affect the terms, conditions, or privileges of his employment.⁶⁴

§ 4.2.8

H. EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT

§ 4.2.8(a)

Liability for Conduct by Managers & Supervisors

The Supreme Court, in Burlington Industries, Inc. v. Ellerth⁶⁵ and Faragher v. City of Boca Raton,⁶⁶ ruled that an employer is strictly liable under Title VII for any sexual harassment by a supervisor that results in a "tangible employment action." The Ellerth court declared a tangible employment action was a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."

If the harassment does not result in a tangible job detriment, an employer still may be liable for a hostile work environment and/or sexual harassment engaged in by managers or supervisors. However, the Supreme Court announced that in such a circumstance, the employer may affirmatively avoid liability if it can show that: (1) it used reasonable care to prevent and correct any harassment (such as by having a sexual harassment policy containing a complaint procedure of which employees were aware), and (2) the employee unreasonably failed to make a complaint under the policy or to avoid harm otherwise.

The affirmative defense outlined in Ellerth and Faragher will not apply if employers fail to take reasonable steps to prevent and correct harassing behavior. In Homesley v. Freightliner Corporation, the Fourth Circuit Court of Appeals held that the plaintiff's employer was not entitled to an affirmative defense in a sexual harassment case, in part because its managers did not comply with the company's sexual harassment policy and did not act promptly to address the alleged behavior. For example, in response to one complaint by the plaintiff, a supervisor told the plaintiff that she should merely have her husband "whip [the alleged harasser's] butt." Further, the court held that the plaintiff did not unreasonably fail to take advantage of corrective measures offered by the employer because she promptly complained to the employer about the alleged conduct as soon as the conduct became physical in nature and persistent rather than sporadic. In O'Rourke v. City of Providence, a female firefighter complained of harassing conduct by her fellow firefighters and commanding officer.⁶⁷ The conduct included the supervisor passing around a videotape of a coworker having sexual intercourse with his girlfriend, asking the female if she was on birth control so that the male firefighters could "bang" her at a union party later in the week, and displaying pornographic magazines and posters of nude women. She complained of the conduct to the Chief and the City's EEO department, but the harassing conduct continued. The Court of Appeals for the First Circuit found that the Ellerth defense was not available because the City failed to monitor its supervisors' conduct.

In addition to requiring that employers use reasonable care to prevent and correct harassment, the employee must also have unreasonably failed to complain in order for the Ellerth/Faragher defense to apply. For example, in Walton v. Johnson & Johnson Services, Inc., after an initial incident of alleged harassment, the plaintiff twice went to the alleged harasser's apartment for visits not required by her job and was allegedly assaulted both times.⁶⁸ The Eleventh Circuit held that because the plaintiff did not report the alleged harassment until after the third incident and because she knowingly placed herself in harm's way, she unreasonably failed to seek redress under the employer's policy. In Casiano v. AT&T Corp., a male customer representative claimed that his female supervisor demanded that he bring her food and beverages; referred to him as "Honey;" and on numerous occasions, propositioned him for sex.⁶⁹ Although the company had an antiharassment policy which encouraged employees to complain to their supervisors or to the company's equal opportunity representative, he made no complaint. The Fifth Circuit dismissed his lawsuit because he unreasonably failed to take advantage of the policy's complaint procedure.

Employers should of course take stock of potentially differing analyses under state harassment laws. For example, in State Department of Health Services v. Superior Court,⁷⁰ the California Supreme Court held that plaintiffs who unreasonably fail to report sexual harassment through reporting procedures established by their employers will be limited in the damages they can recover under the California Fair Employment and Housing Act. Contrary to the analysis under Ellerth and Faragher, the defense does not preclude liability but only reduces damages by the amount of damages that "more likely than not could have been prevented with reasonable effort . . . by taking advantage of the employer's internal complaint procedures."

§ 4.2.8(a)(i)

What Are "Tangible Employment Actions"?

If a supervisor's harassing conduct results in a tangible employment action, the Faragher/Ellerth defense does not apply and the employer will be strictly or automatically liable. Thus, there has been increased litigation over what sort of conduct may constitute such an action. Generally, "tangible employment actions" have been defined as actions that result in a monetary loss for an employee or significant changes in workload or work assignment. However, courts continue to modify and broaden the definition of "tangible employment action," thereby increasing the potential for employers to be found strictly liable.

There was a split among the federal circuit courts of appeal as to whether and under what circumstances an employee's constructive discharge constitutes a tangible employment action under Ellerth and Faragher. This split derived generally from the fact that an employee's constructive discharge, unlike other situations that have been deemed tangible employment actions, can be prompted by the actions of a coworker as well as those of a supervisor. The U.S. Supreme Court recently ended the debate over whether or not a constructive discharge eliminates an employer's opportunity to provide an affirmative defense as articulated in Ellerth and Faragher in its recent decision Suders v. Easton.⁷¹ The Supreme Court held that a constructive discharge may or may not involve an official company act unlike a termination or other recognized adverse employment action. Such uncertainty justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.

Other cases have addressed the tangible employment action issue in different contexts. For example, in Mallinson-Montague v. Pocrnick, two female loan officers claimed that a male senior vice-president began sexually harassing them soon after they began working with him.⁷² On one occasion, he asked one of the loan officers to meet him in a park to discuss business matters. When she arrived, he pressed himself against her, kissed her, and asked her if she could feel his erection. After she rebuffed his advances, he began denying her the business leads he had earlier promised her and began rejecting loans that she originated. The second loan officer complained of similar conduct. As a result of his disapproval of their loans, both loan officers lost commissions and were denied bonuses. Although both women failed to utilize the bank's sexual harassment policy, the court found that the vice president's disapproval of loans constituted a tangible employment action because the two women were monetarily adversely affected.

In contrast, Taylor v. Texas Department of Criminal Justice, an African-American male corrections officer claimed that his female supervising lieutenant sexually harassed him on several occasions.⁷³ When he requested a transfer to another unit, the supervisor denied his request. The officer admitted that while he knew of the department's harassment policy, he made no complaints about his supervisor. The court dismissed his lawsuit, ruling that a refusal to reassign him did not constitute a tangible employment action. As his complaint was therefore one of environmental harassment, the department successfully raised the Faragher affirmative defense.

In another recent case expanding the definition of "tangible employment action," the Ninth Circuit held that a subordinate's submission to a supervisor's quid pro quo insistence on sexual favors qualifies as a tangible employment action making the Ellerth/Faragher defense unavailable.⁷⁴

§ 4.2.8(a)(ii)

Who Is a "Supervisor"'?

As employers may be strictly liable for harassing conduct by supervisors, an important issue in harassment cases is defining who is a "supervisor." The EEOC has issued guidelines defining the scope of employer liability for harassment by supervisory employees.⁷⁵ An individual qualifies as a "supervisor" if: (1) he or she has authority to undertake or recommend tangible employment decisions affecting the employee, or (2) he or she has authority to direct the employee's daily work activities. In addition, liability may occur even if the harasser does not have actual authority over the employee, but the employee reasonably believes the harasser has such power.

The Seventh Circuit, followed by some district courts, has adopted a more narrow definition of "supervisor" than that set forth in the EEOC guidance.⁷⁶ The court has defined the term as a person with "the authority to affect the terms and conditions of the victim's employment," and more specifically "to hire, fire, demote, promote, transfer, or discipline an employee." The Second Circuit, in contrast, recently accepted the EEOC's broad definition of the term.⁷⁷ Finding the EEOC's guidelines "persuasive," the court concluded that an alleged harasser, though he could not hire or fire the plaintiff, refuse to promote her, reassign her with significantly different responsibilities, or significantly change her benefits, was still her "supervisor" because he was the senior employee on site and made and oversaw the plaintiff's daily work assignments. The court stated that the question in cases lacking a tangible employment action is ‘whether the authority given by the employer to the employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates.'

§ 4.2.8(a)(iii)

Liability For Acts of Employer's Proxy

Another issue related to the Ellerth/Faragher analysis is whether the affirmative defense is available absent a tangible employment action where the alleged harasser is the employer's proxy. Recently, in Ackel v. National Communications, Inc.,⁷⁸ the Fifth Circuit interpreted the Supreme Court's decision in Faragher as holding that an employer is automatically vicariously liable for its employees' activities when the harassing employee is a proxy for the employer. The alleged harasser in Ackel was the President of the company who sat on its board of directors and owned 2 % of the company's stock. In refusing to allow an affirmative defense to liability, the court reasoned that agency principles discussed in Ellerth and

Faragher supported automatic liability where the harasser holds a sufficiently high position in the management hierarchy to be regarded as speaking for the corporate employer itself. While the employer in Ackel vaguely argued that the alleged harasser had to answer to the company's certified public accountant, the court found that there was at least a fact issue as to whether the President's actions could be imputed to the company. In a concurring opinion in the case, one of the Fifth Circuit judges critiqued the majority's analysis, asserting that neither Ellerth nor Faragher supported automatic vicarious liability except in situations involving tangible employment actions. Employers should be cognizant that such rulings mean that an employee's failure to take advantage of internal antiharassment policies may not provide a defense to harassment claims if the alleged perpetrator is sufficiently high in the organization.

§ 4.2.8(b)

Liability for the Acts of Coworkers

With respect to conduct between coworkers, an employer is responsible for acts of environmental harassment in the workplace where the employer knows, or should have known, of the harassment. However, liability may be avoided if the employer can show that it took immediate and appropriate corrective action after learning of the harassment.

When an employer has a policy for reporting harassment, and a complaining employee follows the policy, the employer will be considered to have "known" of the complaint. In Breda v. Wolf Camera & Video, a female sales associate repeatedly complained to the store manager about harassment by a coworker.⁷⁹ The company policy specifically stated that employees were to complain of harassment to their store managers and to contact the Personnel Department if the problem was not resolved. Because the sales associate followed the procedures established in the company's policy, her complaint to the store manager constituted notice to the company.

Once an employer "knows" of a harassment complaint or situation, it is most important that an investigation be started as soon as possible. In Star v. West, a female housekeeper at the Veterans Affairs Medical Center complained that her male coworker put his arms around her and grabbed her on at least two occasions.⁸⁰ The same day she reported the conduct, her employer took action and began its investigation. The male coworker was then transferred to another shift and warned to stay away from his coworker. After the warning, the harassing conduct stopped. The Ninth Circuit refused to hold the employer liable for the conduct because the employer's prompt response halted the harassment and was thus adequate. Similarly, in Carrasco v. Lenox Hill Hospital, a male part-time dietary worker in a hospital's nutrition department complained that his coworkers made sexual comments to him.⁸¹ The hospital investigated the complaint but decided there was no merit to the dietary worker's claims. The court refused to impose liability on the hospital because: (1) it provided a reasonable avenue for complaint by establishing and distributing to all employees a sexual harassment policy; and (2) it took prompt action in response to the dietary worker's complaint.

By contrast, in Hare v. H & R Industries, Inc., the Third Circuit affirmed a lower court's imposition of sexual harassment liability on an employer where the plaintiff's supervisor responded to the plaintiff's complaints of coworker harassment by simply instructing the coworkers on one occasion to desist from the conduct, which included lewd comments, sexual propositions and the posting of pornography.⁸² The employer's argument that, because the plaintiff complained to her supervisor and not "management" in accord with the employer's harassment policy was of no help to the employer in light of the fact that the company's general manager and owner found out about the allegations through the plaintiff's supervisor and the supervisor's instruction to the employees failed to put an end to the conduct. In Lissick v. Merril Corp., a plaintiff was permitted to proceed to trial on her sexual harassment claim despite her employer's prompt responses to her repeated complaints about a coworker.⁸³ The court reasoned that there was an issue of fact as to whether the employer's actions (reprimanding the alleged harasser, moving his seat, changing his shift time so he would not have on-the-job contact with the plaintiff, and prohibiting him from parking next to the plaintiff) were effective in eliminating the harassment. After each of the employer's actions, the plaintiff alleged that her coworker persisted in harassing conduct, and the employer refused the plaintiff's requests that the coworker be fired.

§ 4.2.8(c)

Liability for the Acts of Nonemployees

An employer may be responsible for the acts of nonemployees who sexually harass employees if the employer knows, or should have known, of the conduct and fails to take immediate and appropriate corrective action.

For example, in Vargas v. Gumersindo Colon, the medical director of a municipal health center claimed that a member of the center's board of directors sexually harassed her.⁸⁴ She filed suit against the municipality that owned and operated the health center. The federal district court refused to hold the municipality liable because the medical director did not complain to it, and thus it lacked knowledge of the harassment. By contrast, in McDonald v. B.E. Windows Corp., a female bartender was permitted to go to trial on her claim that her employer failed to effectively remedy the harassing conduct of three customers.⁸⁵ The conduct included lewd jokes and inappropriate comments about women, and one night escalated to shouts at the plaintiff to take off her clothes. After this escalation, the employer agreed that the plaintiff would not have to serve them and they would not be allowed to sit at her bar. However, the customers continued to appear at the bar, taunting and staring at the plaintiff. At a later date, they sat at the plaintiff's bar and the plaintiff's supervisor refused to ask them to leave, instead suggesting that she wait in the kitchen until the patrons left. The court, in denying summary judgment for the employer, reasoned in part that the employer's "failure to eliminate contact between plaintiff and the patrons allowed their harassment to take other forms and continue, creating a reasonable inference that the measures were ineffective."

State laws may afford similar protections for employees harassed by third parties. California recently enacted an amendment to the state's Fair Employment and Housing Act (FEHA) that essentially provides the same protection as that provided by federal law in such situations. Specifically, the enactment of Assembly Bill 76 provides that, as of January 1, 2004, an employer with five or more employees may be vicariously liable under FEHA if it knows or should have known of the harassing conduct of a third party toward one of its employees and it fails to take immediate and appropriate corrective action.

§ 4.2.8(d)

Liability to Those Not Harassed

Individuals not themselves the targets of harassing conduct or comments may have actionable claims under Title VII. For example, an employee may have a valid claim by being exposed to a hostile work environment, even if the employee is not personally harassed. In addition, where employment benefits are granted because of one employee's submission to a supervisor's request for sexual favors, but denied to other employees equally or better qualified to receive them, those qualified employees may have actionable sexual harassment claims.⁸⁶

Sexual relationships between fellow employees, without any sexually related actions directed at an uninvolved employee, do not constitute sexual harassment. In Winters v. ADAP, Inc., a female assistant manager at a retail store claimed her work environment was hostile because her supervisor was supposedly having an affair with a cashier, and the two of them occasionally made references to their relationship.⁸⁷ The court found that while the affair and concomitant banter might lend to an uncomfortable atmosphere, they did not create a severe or pervasive atmosphere of harassment.

§ 4.2.8(e)

Liability for Punitive Damages

In Kolstad v. American Dental Association, the U.S. Supreme Court considered the circumstances under which punitive damages might be awarded in a Title VII action.⁸⁸ The court pronounced that because malice and reckless indifference, the standard for awarding punitive damages, focuses on an individual's state of mind, whether the employer had knowledge that it might be acting in violation of federal law should first be examined. The court reasoned that where an employer has undertaken good faith efforts to comply with Title VII — such as preparing and implementing written antiharassment and discrimination policies, and educating employees on harassment and discrimination issues — the employer will not be liable for the discriminatory employment decisions of its managers when those decisions are contrary to the employer's policies.⁸⁹

In Hall v. Consolidated Freightways Corp. of Delaware, the employer unsuccessfully argued that its good faith efforts to comply with Title VII – including the alleged posting of a comprehensive zero-tolerance policy on racial harassment and yearly antidiscrimination meetings – provided a defense to punitive damages awarded by a jury in a race discrimination case.⁹⁰ The court reasoned that the record did not support the employer's assertions, because the plaintiff presented witnesses who expressed doubt that the meetings occurred and testified that the employer's policy was not prominently posted where any employee would notice. Additionally, there was evidence that the employer did not enforce the policy during four years in which numerous incidents of racial animus occurred.

§ 4.2.9

I. PERSONAL LIABILITY FOR UNLAWFUL HARASSMENT

Courts have routinely ruled that managers and supervisors may not be found personally liable for unlawful harassment, as well as for other types of discrimination. The Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and District of Columbia Circuit Courts of Appeals have ruled that supervisors are not personally liable because the supervisor is not the employee's employer as defined by Title VII.⁹¹ State law, however, may impose personal liability upon managers and supervisors.

§ 4.2.10

J. DEFENSES TO ENVIRONMENTAL HARASSMENT CLAIMS

An environmental harassment claim requires the plaintiff to prove each element of the claim, including that the conduct was: (1) unwelcome; (2) related to a protected category; (3) offensive both to the recipient and to a reasonable person; and (4) severe or pervasive. A defense to an environmental harassment claim can be established by showing that at least one of the elements of the claim does not exist. In addition, plaintiffs are required to exhaust administrative remedies for the alleged harassment before they may bring a lawsuit against their employer, and failure to do so constitutes yet another defense. Furthermore, the employer may be able to invoke the Ellerth/Faragher defense if the employer exercised reasonable care in preventing and correcting harassment and the employee unreasonably failed to take advantage of the company's harassment complaint procedures.

§ 4.2.10(a)

Conduct Must Be Unwelcome

Court Finds Employee Welcomed the Alleged Harassing Conduct

As discussed above, a necessary element to a hostile work environment claim is that the conduct or comments are unwelcome. In Stephens v. Rheem Manufacturing Co., a female employee contended that during three years of employment, her male supervisor regularly complimented her on her appearance, made sexually suggestive comments, blew into her ear or hair, and tried to peek under her skirt.⁹² While the supervisor admitted to the conduct, he insisted that it was welcomed by the employee. Several witnesses testified that the relationship was flirtatious in nature and appeared to be consensual. The female did not complain for three years and had appeared to enjoy spending time with the supervisor, notwithstanding his overtures. The Eighth Circuit Court of Appeals upheld the jury's verdict for the employer, agreeing that the female had failed to prove that the supervisor's conduct was unwelcome.

§ 4.2.10(b)

Conduct Must Be Severe or Pervasive

A single episode of sexual harassment rarely rises to the level of pervasiveness required for a hostile work environment claim. Instead, an employee generally must demonstrate that the workplace was permeated with harassment that was sufficiently severe or pervasive to alter the conditions of employment. There has been disagreement among the courts as to what conduct is sufficiently severe or pervasive to constitute unlawful harassment. The following are just a few examples of the various standards applied in different circuit courts.

In Brooks v. City of San Mateo, a female telephone dispatcher was physically and verbally harassed by her male coworker, a senior dispatcher, on one occasion.⁹³ One night, during the evening shift, the male approached the female as she took a call. He first placed his hand on her stomach and commented on its softness. When she told him to stop touching her and pushed him away, he reached underneath her sweater and bra and fondled her breast. She immediately reported the incident and the next day the male dispatcher was suspended; he eventually resigned after the City began termination proceedings against him. Although the female dispatcher sought to hold the City liable for her coworker's conduct, the Ninth Circuit Court of Appeals rejected her claim. The court found that this was a single instance of harassment; did not alter her working conditions; and, while reprehensible, was not sufficiently severe to create a hostile environment.

In contrast, the Seventh Circuit Court of Appeals found actionable harassment when a supervisor placed his hand down an employee's dress and touched her breast for several seconds in Worth v. Tyler.⁹⁴ Similarly, the Second Circuit Court of Appeals found that a single obscene verbal attack did constitute sexual harassment. In Howley v. Town of Stratford, a female firefighter's sexual harassment lawsuit was based upon the conduct of a male firefighter at a firefighters' association meeting.⁹⁵ During the meeting, the female was subjected to an extended barrage of verbal abuse. He called her a "f___ing, whining b____," made comments about her menstrual cycle, and told her she only made lieutenant, not assistant chief, because she did not perform fellatio good enough. She immediately filed a written complaint the next day. However, the Town took no action for five weeks. When it finally did act, it suspended the male for two days for "unbecoming conduct," and only recommended, not required, that he apologize. The court found that although the male made obscene comments on only one occasion, he did so at length, loudly, and in front of a large group. In addition, the female firefighter was the only woman there. The court sent the case back to the lower court for trial, noting that a jury could view the incident as serious and humiliating enough to alter the female firefighter's working conditions.

In Eich v. Board of Regents for Central Missouri State University,⁹⁶ the Eighth Circuit reinstated a jury verdict in favor of a police officer who claimed she was harassed by two coworkers. Over a period of seven years, one officer had brushed against her breasts, rubbed her shoulders, run his fingers through her hair, simulated a sex act while she was bent over and made comments about her nipples. The other officer had made comments about her appearance and chest size, rubbed his hand on her leg during meetings and pressed his groin into her shoulder while she was sitting at a computer. Referring to the case as one "involving a question of human decency," the court of appeals reversed the trial court's judgment in favor of the employer. The court found a "long serious of incidents of sexual harassment in [plaintiff's] workplace which went far beyond gender-related jokes and occasional teasing."

§ 4.2.10(c)

"Reasonable Person" Would Not Find Conduct Offensive

Not only must the alleged harassing conduct be unwelcome, but a "reasonable person" in the employee's position must also find that the conduct or comments were offensive.

The Eleventh Circuit Court of Appeals echoed the view of a number of federal circuits that Title VII is not a "general civility code" in Gupta v. Florida Board of Regents.⁹⁷ A female assistant professor claimed she was sexually harassed by a male associate professor and department chairman. She asserted that for approximately six months, he looked at her face and legs, took her to lunch frequently, took her and another couple to dinner at a singles bar, told her she looked beautiful, and called her at home late at night. The Eleventh Circuit found, from an objective perspective, the incidents did not constitute actionable sexual harassment. The court declared that an employer cannot be required to ensure that supervisors never look at or stare at a subordinate in a manner that the subordinate might perceive as suggestive. Further, complimentary words such as "you look beautiful" may commonly be used in a flirtatious manner, but flirtation is not sexual harassment. The court found that a reasonable person would not find such behavior offensive and reversed the jury verdict in favor of the female professor.

§ 4.2.10(d)

Employee Failed to Exhaust Administrative Remedies

As a general rule, an employee cannot file a Title VII lawsuit prior to filing a charge with the EEOC and receiving the requisite "right to sue" notice. Further, an employee cannot file a lawsuit with additional claims that have not been included in his or her EEOC charge. Although a lawsuit does not need to be identical to the EEOC charge, there still must be a "reasonable relationship" between the allegations in the charge and those in the lawsuit.

In Vela v. Village of Sauk, a female police officer filed a lawsuit alleging sex and national origin discrimination and sexual harassment.⁹⁸ On her EEOC charge, the officer checked "sex" and "national origin" as the bases of discrimination against her; she did not include any allegations of sexual harassment in the charge. Because she made absolutely no mention of any sexually harassing conduct in the EEOC charge, the Seventh Circuit concluded she had failed to exhaust her administrative remedies with the EEOC as to the sexual harassment claim.

In addition to filing a claim with the EEOC, an employee has a duty to cooperate with the EEOC. The failure to cooperate may prevent the employee from litigating the claim. In Wood v. Central Parking System of Pennsylvania, Inc., an employee filed an EEOC charge alleging sex harassment.⁹⁹ On two occasions, the employee failed to respond to a questionnaire sent to her by the EEOC. The EEOC finally dismissed the charge due to her failure to cooperate in the investigation and issued a right-to-sue notice. After the employee filed a Title VII lawsuit, the employer argued the suit should be dismissed, and the court agreed. The court reasoned that the EEOC is required by statute to investigate charges of discrimination. By failing to cooperate with the EEOC, the employee prevented it from conducting an investigation and thus the employee failed to exhaust her administrative remedies — a prerequisite to filing a Title VII action.

§ 4.2.10(e)

Employer Used Reasonable Care to Prevent & Correct Harassment

In cases where supervisory behavior is severe and pervasive enough to constitute environmental harassment, but does not result in a tangible employment action, employers have an affirmative defense to liability if they exercised reasonable care in preventing and promptly correcting workplace harassment.

The courts analyzing this defense have considered not only whether the employer has an antiharassment policy, but also whether the policy had been effectively communicated to supervisors and employees. In Nuri v. PRC, Inc., although the employer had a "comprehensive, vigorously enforced policy" against sexual harassment, the employee presented substantial evidence that the policy was not well-known and, in fact, was not known at all to employees in her particular facility.¹⁰⁰ The court noted that "because having its employees be aware of the policy is so crucial to having a policy that is effective . . . it is seriously doubtful that [the employer] could be said to have ‘exercised reasonable care to prevent and correct promptly any sexually harassing behavior.'"

§ 4.2.10(f)

Employee Unreasonably Failed to Utilize Harassment Policy

An employer may also avoid liability for conduct by a supervisor if it has adopted a reasonable antiharassment policy containing a complaint procedure, and employees unreasonably fail to take advantage of the procedure provided. In Leopold v. Baccarat, Inc., a salesclerk claimed that her supervisor made sexist comments towards her and her coworkers, and threatened to replace them with "young and sexy hires."¹⁰¹ The company's antiharassment policy and complaint procedure instructed employees to speak to any officer of the company, including the president, if an employee's supervisor could not handle the problem, or (as was the case here) was involved in the alleged harassment. However, the salesclerk never complained to anyone prior to bringing her lawsuit, contending that she was too frightened to do so. She did not, however, produce any evidence that the company would fail to investigate her complaint or retaliate against her for bringing it. The court then dismissed her claims because she had unreasonably failed to make use of the company's complaint procedure.

The Eleventh Circuit Court of Appeals dismissed two employees' sexual harassment claims in Madray v. Publix Supermarkets, Inc. because they unreasonably delayed in utilizing their employer's complaint procedures.¹⁰² The employer had distributed a policy to all employees prohibiting harassment that specified company officials to whom complaints should be addressed, including the store manager, district manager or division personnel manager. The employees initially complained to two mid-level managers who did not take any action. Subsequently, they complained to the district manager, who conducted a prompt investigation. As a result, the harassing employee was demoted and transferred. The court of appeals dismissed the employees' complaint and refused to hold the employer liable because the employer's policy had specifically named those persons to whom complaints should be made. By failing to follow the policy, the employees had not placed their employer on notice when they made their earlier complaints.

K. Statutory Remedies for Unlawful Harassment Claims

§ 4.2.11

K. STATUTORY REMEDIES AVAILABLE FOR UNLAWFUL HARASSMENT CLAIMS

§ 4.2.11(a)

Title VII & The Civil Rights Act of 1991

Title VII, originally enacted in 1964, did not provide for damages beyond traditional "equitable" relief, such as back pay and reinstatement. The Civil Rights Act of 1991 expanded the remedies available under Title VII to include compensatory damages (for pain and suffering, humiliation and embarrassment) in cases of intentional discrimination and punitive damages in cases where the employer acted in a malicious or reckless manner. Under Title VII, the total amount of compensatory and punitive damages which a successful plaintiff can recover is capped at $50,000-$300,000, depending on the size of the employer. However, state discrimination laws can provide another avenue for successful plaintiffs to recover punitive awards above and beyond this cap. For example, in Hall v. Consolidated Freightways Corp. of Delaware, the Sixth Circuit held that a jury award for $750,000 in punitive damages in a race discrimination case under Title VII and Ohio law must be reinstated.¹⁰³ Overturning a lower court that had capped the punitive damage award, the Sixth Circuit reasoned that Ohio discrimination law allowed unlimited punitives where the jury finds that the defendant acted with "actual malice." Since the jury instructions under which the jury found liability required in part a finding of malice, the Ohio law's punitive damage prerequisite was met, and the court deemed the cap on the jury's award inappropriate.

The prevailing party also is entitled to recover attorneys' fees. As interpreted by the courts, this standard entitled plaintiffs to receive attorneys' fees when attaining some tangible award, such as the payment of damages, or the termination of some conduct by the employer so that the legal relationship between the parties is materially altered.¹⁰⁴ Successful defendants are only rarely awarded attorneys' fees because, in order to be considered a "prevailing party," they must prove that the plaintiff's lawsuit was frivolous or meritless.¹⁰⁵

§ 4.2.11(b)

Age Discrimination in Employment Act

The ADEA provides many legal and equitable remedies, including preliminary and permanent injunctions, compelled employment, reinstatement or front pay, promotion, and back pay. In the case of willful violations of the statute, liquidated damages in an amount double to the employee's monetary loss (usually back pay) are also available. Compensatory damages for pain and suffering and punitive damages, however, are not available.

As with Title VII, reasonable attorneys' fees and litigation costs can be assessed against the defendant when the plaintiff is the prevailing party. Also similar to Title VII is the rarity with which defendants are awarded attorneys' fees and costs when they prevail. In an ADEA case, a prevailing defendant may be entitled to attorneys' fees if the defendant can show that the plaintiff litigated in bad faith.¹⁰⁶

§ 4.2.12

L. OTHER IMPORTANT ISSUES TO CONSIDER

§ 4.2.12(a)

The Problems with Workplace Romance

Workplace romance is another area of potential liability for individual managers and employers alike. Because employees work longer hours and spend more time in the workplace than ever before, inter-office dating has become more prevalent. Practically speaking, it is nearly impossible to control employee dating completely. However, managers and supervisors should be especially cautious about becoming involved with a subordinate who reports directly to them. Lawsuits and common sense indicate that this is an extremely high-risk situation, particularly if the relationship ends and the parties continue working together. Any negative employment action that occurs at work after a relationship has ended may be perceived as retaliation, even if it is justified by legitimate business reasons. Successful relationships may engender jealousy or resentment in coworkers and may lead to claims of favoritism or harassment.

Manager's Checklist: Avoiding Liability for Workplace Romance

In order to avoid any appearance of impropriety as well as potential liability, the following is a checklist managers should follow:

• If your employer has a policy about workplace dating, apply it consistently and comply with it yourself.
• Do not ask inappropriate questions about employees' or coworkers' dating or sex lives.
• Recognize that dating between a manager and an employee creates a high-risk situation.
• Anything positive that occurs at work during a relationship may be perceived as favoritism, even if the positive occurrence is justified by legitimate business reasons.
• Anything negative that occurs at work when a relationship ends may be perceived as retaliation, even if it is justified by legitimate business reasons.
• Manager-employee dating may lead others to claim that a sexually offensive work environment has been created.
• Recognize that dating between two managers or two employees also carries risks— potential claims of retaliation and/or a sexually offensive work environment.
• Respect an employee's or a coworker's disinterest in pursuing a romantic relationship.

§ 4.2.12(b)

Sexual Favoritism

Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. It is the EEOC's position that while an isolated instance of favoritism toward a "paramour," significant other, or even a friend may be unfair, it does not constitute discrimination against other female or male employees in violation of Title VII because both are disadvantaged for reasons other than their gender.

However, if favoritism is based upon the granting of sexual favors and is widespread in the workplace, both male and female employees may have claims of unlawful harassment if they find such conduct objectionable.

Another issue with allowing managers to engage in widespread sexual favoritism is the effect on the company environment. Employers who allow this behavior may give the impression that the only way for women to get ahead in the workplace is to engage in sexual conduct or that submission to sexual solicitation is a prerequisite for fair treatment.

Manager's Checklist: Avoiding Liability for Sexual Favoritism

In order to avoid potential liability for this type of conduct, the following steps should be taken:

• Donot ignore rumors of sexual relationships between supervisors andsubordinates. Such talk is often an early warning sign that asupervisor is involved in a relationship with a subordinate, asituation which, at a minimum, warrants further investigation.
• Limitinquiries to work-related matters. Discussions regarding anemployee's personal life may be protected by the right toprivacy in many states. If, however, private conduct does startaffecting the workplace, the employer should be concerned and takeremedial action, where necessary.
• If relationships do develop between supervisors and subordinates, itmay be appropriate to intervene in the situation and take stepsnecessary to eliminate any perceived impropriety.
• If transferring an employee engaged in a workplace romance becomes necessary, make sure that it is not always the lower-level employee who is transferred. One way to avoid this issue is to have the two employees chose who should be transferred, assuming an appropriate position is available.

§ 4.2.12(c)

Unwanted Electronic Mail

With the rising use of electronic mail as a method of communicating at work, employers are becoming more concerned about the enormous increase in the receipt of unsolicited commercial e-mails, commonly known as "spam," by their employees. Various studies have shown that spam is having a detrimental impact on worker productivity, network utilization, mail storage systems and employee morale. It is also leading to concerns about the need to protect employees from unsolicited offensive and even pornographic spam. It has long been recognized that the proliferation of pornographic images in the workplace can create a hostile environment for employees. As technology evolves and spam becomes more prevalent, it is likely that courts will soon be called upon to decide whether and under what circumstances an employer can be liable for failing to implement appropriate safeguards to limit pornographic spam in the workplace.

Efforts to reduce the volume of unwanted e-mail gained momentum in 2003. On December 16, 2003, President Bush signed a new law that will prohibit senders of unsolicited commercial e-mail from disguising their identities by using false return addresses or misleading subject lines. In the private sector, many internet service providers and software companies have been aggressively working to reduce the volume of spam, using both technology and litigation in an attempt to stem the tide of unwanted and pornographic e-mail. The effectiveness of these efforts has yet to be determined.

Manager's Checklist: What Your Organization Can Do

While it is virtually impossible to eliminate all spam from the workplace, there are several steps that employers can take to reduce the impact of spam:

• Implement or revise e-mail policies to instruct employees to bring inappropriate, especially sexually inappropriate e-mails, to the company's attention.
• Reevaluate whether it is time to update anti-spam software. The technology in this area is constantly changing as spammers learn how to avoid detection by evolving anti-spam software. Thus, employers should periodically evaluate whether current software is effectively eliminating spam in the workplace.
• Educate employees about the anti-spam software currently being used by the company. Such software is typically equipped with settings whereby users can have e-mails containing certain key words or phrases automatically deleted while adding the sender's name to a junk e-mail list preventing future e-mails from that sender from being put through. Such features are ineffective if your employees do not know how to use them.
• Instruct employees to never respond to spam. Even responses that include a request to be removed from an electronic mailing list often have the opposite effect and result in even more spam being sent to the user.
• Instruct employees and set up policies only permitting use of the internet when it is work related. If some non-work related internet use by employees is permitted, advise employees to stay away from chat rooms, forums, and discussion groups.

§ 4.3

III. PREVENTING SEXUAL HARASSMENT IN THEWORKPLACE: A GUIDE FOR HR PROFESSIONALS

In the wake of the decisions of the Supreme Court in Ellerth and Faragher, establishing an action plan for handling complaints of harassment is no longer merely a wise employment practice. Rather, such a plan is paramount in preventing harassment in the first place and effectively dealing with any complaints that may arise. The following is a seven step program that Human Resources professionals should follow in order both to prevent harassment and to limit liability for unlawful conduct.

§ 4.3.1

A. WHAT EVERY MANAGER SHOULD KNOW ABOUT AVOIDING LIABILITY: STEPS FOR ACTION

Step One: Understand What Is or Is Not Unlawful Harassment

Generally, there are two types of harassment: economic and environmental. The following are checklists to determine whether either type exists in the workplace.

Economic Harassment

• Is the alleged harasser a manager?
• Have there been threats or promises made linked to sexual conduct or requests for dates?
• Has the manager followed through on the threats and taken a tangible employment action against the employee? Remember: a tangible employment action may be "positive," such as granting a promotion in exchange for acquiescing to sexual requests, or "negative," such as demoting an employee for refusing to comply with such requests.

If each of the above questions is answered affirmatively, then it is likely that the manager has engaged in economic harassment. For example, a manager says to a subordinate: "Go out with me and I'll make sure you get that promotion." If the employee says no and does not receive the promotion, the employee may believe it was because of the sexual rejection. The failure to be promoted would be considered the tangible employment action.

Environmental Harassment

• Has the employee been subjected to conduct that is either sexual in nature or directed at a protected category? Remember: The conduct need not be directed at the employee. The employee may simply overhear or witness the conduct.
• Is the conduct uninvited or unwelcome? Remember: The alleged harasser's intent is not relevant. The focus is the impact on the employee of the alleged harasser's conduct.
• Would a "reasonable person" find the conduct offensive?
• What is the level of severity or pervasiveness of the alleged conduct? In order to answer this question, the totality of the circumstances must be examined.
• How frequent was the conduct?
• How severe or egregious was the conduct?
• Is the conduct physically threatening or humiliating?
• Does the conduct consist of an isolated or stray remark or repeated, continual comments?
• Did the conduct interfere with the employee's ability to perform his/her job?
• Was there a negative impact on the employee's psychological well-being?
• Was the alleged harasser a coworker or a supervisor?
• Did others join in the harassment?
• Was the harassment directed at more than one individual?

These questions do not all need to be answered affirmatively. Rather, it is important that each factor be considered and balanced in order to assess whether the circumstances are such that the conduct was sufficiently severe or pervasive to create a hostile working environment.

Types of Harassing Conduct

To constitute unlawful harassment, the conduct must be sexual in nature or directed at a protected category. Offensive conduct may be physical, verbal or visual as illustrated by the following examples.

Examples of physically harassing conduct include:

• Pranks, intimidating acts
• Hugging, groping, inappropriate touching
• Assault
• Rape, sexual assault
• Stalking
• Blocking

Courts generally consider physical harassment to be more severe than nonphysical conduct. Thus, fewer incidents of physical harassment are usually necessary to constitute harassment.

Examples of verbally harassing conduct include:

• Epithets, offensive jokes, stories
• Cat calls, talking about one's sex life, grunts and moans
• Asking for a date after repeated rejections

Examples of visually harassing conduct include:

• Offensive cartoons, pictures, e-mails, or graffiti
• Offensive gestures
• Winking, throwing kisses
• Looking a person up and down
• Making sexual gestures with hands or body movements

Note: These are not all-inclusive lists.

Step Two: Develop an Antiharassment Policy

A thorough antiharassment policy, including complaint procedures under which an employee may bring complaints to more than one person, is critical. An effective, easily understood policy is fundamental to establishing the employer's defense that it exercised reasonable care to prevent unlawful harassment. The Supreme Court in Faragher stated that an antiharassment policy with complaint procedures would constitute "a significant factor" in meeting the first element of the employer's defense.

In its June 1999 guidelines, the EEOC underscored the importance of antiharassment policies containing complaint procedures.¹⁰⁷ The policies should be distributed periodically and, if feasible, employers should provide training to all employees to ensure that they understand their rights and responsibilities. The EEOC recommends that a policy and complaint procedure should contain, at a minimum, the following elements:

• clear explanation of prohibited conduct;
• protection against retaliation for the complaining employees;
• clearly described and accessible complaint procedure;
• assurance of confidentiality to the best extent possible;
• effective investigative process; and
• assurance of immediate and appropriate corrective action when harassment has occurred.

A model unlawful harassment policy has been included in this chapter under the Essential Tools section.

Step Three: Distribute the Policy

In the cases which have considered the affirmative defense, courts have looked not only at whether an employer had an antiharassment policy, but also at whether the policy had been effectively communicated to supervisors and employees. In Nuri v. PRC, Inc., although the employer had a "comprehensive, vigorously enforced policy" against sexual harassment, the employee presented substantial evidence that the policy was not well known and, in fact, was not known at all to employees in her particular facility.¹⁰⁸ The court noted that "because having its employees be aware of the policy is so crucial to having a policy that is effective . . . it is seriously doubtful that [the employer] could be said to have exercised reasonable care to prevent and correct promptly any sexually harassing behavior.'"¹⁰⁹

Employers should disseminate their policy to all employees. Managers and supervisors at all levels, of course, need to know that the policy exists and how to follow the specific procedures in the event of concerns raised or complaints made about unlawful harassment. Employers should not maintain these policies only in management binders or on corporate office shelves. Current policies can be placed on an organization's intranet and can thus be available 24 hours a day. Encrypted computer signatures can validate that the policy has been received. However, for most employers a signed paper copy of the policy will still be the most efficient method of insuring that each employee has received it.

Step Four: Conduct Training

A key concern of the Supreme Court in Faragher was the fact that the City of Boca Raton had failed in its duty to adequately train its supervisors. The Court noted that "the employer has a greater opportunity to guard against misconduct by supervisors than of common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance."

The Supreme Court thus sent a clear message: the failure to adequately train supervisors regarding all aspects of unlawful harassment creates Title VII liability and may deprive the employer of its best defense.

All employers should revisit their overall unlawful harassment prevention plans and adopt effective, enlightened, practical and consistent training programs. One of the most effective and proactive ways to prevent unlawful harassment lawsuits is to teach employees about the specific conduct prohibited, and to inform them that they will be held personally and individually accountable for such behavior. It is important now, more than ever, that managers and supervisors receive appropriate training.

Step Five: Audit Employment Decisions

Every employer should heed the Supreme Court's focus on ‘tangible employment actions' by ensuring that all such actions are subject to internal "checks and balances" before implementation. This review may be performed by human resources personnel or other experienced managers to ensure that objective bases exist for such actions.

Step Six: Conduct Prompt & Thorough Investigations

Prompt investigation of harassment claims is crucial. An employer's indecisive action, or failure to exercise leadership in this context, will serve neither to correct unlawful behavior nor to establish that it exercised reasonable care in preventing harassment. An effective investigation includes planning and coordination with Human Resources. Experience teaches that where the employer takes the concerns raised seriously; investigates complaints promptly; and communicates the investigatory plan and the antiharassment policy (including no retaliation) to the complaining employee, the complainant is reassured and risks of further claims and eventual liability are reduced. Finally, thorough, accurate and factual documentation is a key factor in accomplishing the best possible outcome. Because such investigations require outstanding listening and communication skills, as well as scrutiny and interpretation of complex human interactions, only well trained managers or third parties should be charged with this responsibility. Incomplete, inaccurate or biased investigations can actually serve to deepen the problem and the employer's liability.

A checklist for handling and addressing harassment complaint